APPLICANT REQUESTS:  That his undesirable discharge be upgraded to honorable.  He contends that he was wrongfully stationed at Fort Riley, Kansas on his return from Vietnam and that is why his problems started with the military.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 29 January 1971 for 3 years and was discharged at his own request on 24 August 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

He served 8 months and 2 days in Vietnam.  His awards include the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal and the Marksman Badge with rifle bar.

On 25 April 1972 his unit reported him AWOL and 30 days later dropped him from the rolls as a deserter.  He was returned to military control on 18 July 1972.

On 24 July 1972 charges were preferred against him for 85 days AWOL in violation of Article 86, UCMJ.  Thereafter, he consulted with counsel and submitted a request for discharge in lieu of trial by court-martial.  The appropriate authority approved his request, and directed the issuance of an Undesirable Discharge Certificate.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges were preferred and must have included the individual’s admission of guilt.  Although an honorable or general discharge was authorized, an undesirable discharge was normally considered appropriate.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 24 August 1972, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 24 August 1975.

The application is dated 26 November 1995 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

                      EXCUSE FAILURE TO TIMELY FILE

                      GRANT FORMAL HEARING

                      CONCUR WITH DETERMINATION




		Karl F. Schneider
		Acting Director